Aug 272012
 

As you may be aware, Julian Assange, founder of WikiLeaks, has been holed up in the Ecuadorian Embassy to avoid deportation/trial/etc.  In the Christian Science Monitor, Kantathi Suphamongkhon makes a case for how Assange could be arrested without breaking international law.  “How to arrest Julian Assange without violating international law” is an interesting read.

In other news, Russia warns the United States against “violating” international law in the Syria conflict.  While this is not solely a human rights issue and the United States does not have a stellar human rights record, it is always ironic to to be lectured by Russia, China, Syria, and the like.  Free Pussy Riot, anyone?

Feb 292012
 

I do not wish to harp on the issue of banning international law in state courts, but alas, I will…

Many US states are concerned about Islamic Sharia law overtaking their judicial systems, so many states – beginning with Oklahoma – have decided to take action banning Sharia law, thus often prohibiting state court judges from considering principles of international law.  (The vast majority of issues before state courts would never involve international law.)

The web site Gavel to Gavel, which bills itself as “a review of state legislation affecting the courts,” has a rundown on states banning use of Sharia or International Law.  Take a look.

Feb 232012
 

For decades, the United States was considered a leader in international law and human rights, and the American public largely supported their government’s efforts in developing and abiding by international law.

While America’s commitment to international law and human rights has never been beyond reproach, many Americans’ view of international law has recently soured.  According to the Centre for Research on Globalization:

“Americans are increasingly embracing policies that undermine the international rule of law, with self-identified liberals, in particular, seemingly reversing their positions on matters such as the Guantanamo prison camp, extrajudicial assassinations and arbitrary detention.” (link)

This shift in perspective is likely caused, at least in part, by the rise of international terrorism and the Bush and Obama administrations’ practices of long-term detention, use of military tribunals, and targeted assassinations.

Americans’ decreasing support appears to be motivated by fear.  American resistance to international principles stem from a belief that such laws weaken the country’s defense and leave it vulnerable.  Much of this fear is related to many Americans’ negative view of Middle Eastern culture and their fear of Islamic-based Sharia law.  In many respects, Sharia law is oppressive, violent, and a barrier to free society.

While this fear is not wholly unreasonable, it is crucial that America does not retreat too far.  Americans must remember the benefits of international law.

International principles create a framework for nations to negotiate and adjudicate disputes, create economic opportunities, and hold oppressive and abusive political and military leaders accountable.  Unfortunately, this framework becomes more tenuous when dealing with international groups acting independent of a nation state; however, even when one nation or group violates or threatens international standards, America must hold itself and it’s peers to the standards of international law.

Of course, nothing is ever this black and white, especially in the international arena, but America has a legal and moral obligation to support well-founded rules of international law.

Jul 062011
 

Following a not so brief hiatus from blogging, forced in part by technical difficulties, I return today with a story that has generated several headlines over the past several weeks.

While the United States has largely focused on trials of Casey Anthony and Roger Clemens, one significant international legal drama has received far less attention.

Tomorrow, Thursday, July 7, 2011, Texas is scheduled to execute Humberto Leal Garcia, Jr.  for the rape and murder of a sixteen year old Texas girl.

Human rights activists, international law experts, the United Nations, the United States Department of State, and others are petitioning for a stay of Garcia’s execution because Texas did not provide Garcia with protections guaranteed under the 1963 Vienna Convention on Consular Relations.

Garcia is a Mexican citizen, and because both Mexico and the United States are signatories to the Vienna Convention, Garcia is afforded certain rights under the Treaty.  Under Article 36 (reproduced below), Garcia should have been notified (but was not notified) of his right to contact the Mexican Consulate, which could have provided legal aid and assistance in his defense.

Despite calls for a stay of execution, Texas Governor Rick Perry has signaled that he will not halt the execution, and the Obama administration has filed a brief supporting a stay with the US Supreme Court.

It may be unlikely that Garcia’s trial would have had a different outcome had he obtained access to the Mexican Consulate’s services; however, allowing an execution to occur when the defendant’s rights under international treaty law were not properly afforded is a serious infraction of international law.  The US Supreme court has until tomorrow to intervene in the case.

More info concerning the facts of this case and opinion can be found in the following easily digestible articles:

Texas Is Pressed to Spare Mexican Citizen on Death Row, by Adam Liptak, New York Times.

In Texas, a Death Penalty Showdown With International Law, by Nicole Allan, The Atlantic.

Supreme Court to Decide on Mexican’s Execution, by Reid J. Epstein, Politico.

_____

Article 36

COMMUNICATION  AND  CONTACT  WITH  NATIONALS  OF  THE  SENDING  STATE

1.  With  a  view  to  facilitating  the  exercise  of  consular  functions  relating  to  nationals  of the sending State :

(a)  consular  officers  shall  be  free  to  communicate  with  nationals  of  the sending  State  and  to  have  access  to  them.  Nationals of the  sending  State  shall  have the same  freedom with  respect to  communication  with and  access to  consular  officers  of the  sending State;

(b)  if he  so  requests,  the  competent  authorities  of the  receiving State  shall, without delay, inform the consular post of the sending State if, within its  consular  district,  a  national  of  that  State  is  arrested  or  committed  to  prison  or  to  custody  pending trial  or  is  detained  in  any  other  manner.  Any communication addressed  to  the  consular  post  by  the  person arrested,  in  prison,  custody  or  detention  shall  also  be  forwarded  by the  said  authorities  without  delay.  The said  authorities shall inform the  person  concerned  without  delay  of  his  rights under this sub-paragraph;

(c)  consular  officers  shall  have  the  right  to  visit  a  national  of the  sending State who is in prison, custody or detention, to converse and correspond with  him  and  to  arrange  for  his  legal  representation.  They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment.  Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

2.  The right referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State,  subject  to  the proviso,  however,  that  the  said  laws  and  regulations  must  enable  full  effect  to be  given  to  the  purposes  for  which  the  rights  accorded  under  this  Article  are intended.

Oct 132010
 

This has been a quiet week; however, I ran across something interesting concerning the UK Bribery Act of 2010, on which I previously blogged:

If your company does business in the United Kingdom, you should be working to ensure compliance with the UK Bribery Act of 2010, which “enable(s) courts and prosecutors to respond more effectively to bribery at home or abroad.

The Act’s prohibitions include offering or receiving a bribe and a corporation’s failure to prevent a bribe.

The Act casts a wide net, covering both the bribery of public officials and exchanges between private entities.  It also dramatically increases the UK’s reach in prosecuting corruption, extending liability to exchanges occurring between parties outside of the United Kingdom

Edwards, Angell, Palmer & Dodge LLP recently released guidance on the new Act, which can be found at www.jdsupra.com.   If you conduct business in the UK, this guide may be a good first step to become familiar with the Act and what compliance requires.

Sep 022010
 

As I noted Tuesday, a North Carolina US District Court sided with Chevron in its attempt to compel documents related to the documentary “Crude” as well as requiring respondents to attend a September 8 deposition.

The court reached its holding based on evidence that the plaintiff’s lawyers had committed fraud in the Ecuadorian proceedings.  The district court stated:

While this court is unfamiliar with the practices of the Ecuadorian judicial system, the court must believe that the concept of fraud is universal, and that what has blatantly occurred in this matter would in fact be considered fraud by any court.

I received a reader question regarding the validity of a US court recognizing such fraud and “intervening” in ongoing litigation in another nation.

Would this be uncommon?  Perhaps, but that is not what occurred in this particular instance.  Hopefully, I can provide a satisfying, if overly simplistic, explanation.

Chevron is in ongoing litigation in an Ecuadorian court.  Chevron recently claimed that they became aware of footage from a documentary, shot by an American documentary team, that indicated that individuals involved in the Ecuadorian case might have engaged in fraudulent behavior.  As a result, Chevron wanted footage from the documentary to use in their case.

Chevron went to a US district court to compel the documentary makers to turn over the footage to Chevron.  By doing so, Chevron did not directly ask the court to intervene in the Ecuadorian proceedings, but to merely compel “discovery” of the documentary footage.

This is allowed under a federal US statute  [28 U.S.C. 1782(a)], which allows, under certain circumstances/procedural guidelines, a US federal court to order a respondent to produce documents or testimony for use in a foreign court case.  The court weighed many factors, and ultimately allowed Chevron to have access to the footage.

The US district court did not intervene in the Ecuadorian case; instead, they allowed Chevron have access to potential evidence that was located in the United States.

Of course, that was over simplistic, and only representative of this one sub issue.  This case has been going on for years, both in Ecuadorian and United States courts.  This is merely the most recent in a string of developments and litigation tactics pursued by both sides.

This case is ultimately about whether toxic waste was deliberately dumped by Texaco into the Amazon.

Chevron has instigated proceedings in multiple jurisdictions (from the US to Ecuador and back), and recently the plaintiffs have pointed to Texaco’s (now part of Chevron) internal audits that show that they were aware of the contamination.

On August 28, the Ecuadorian plaintiffs filed a brief to quash subpoenas in part based on these internal audits.  The audits can be downloaded in pdf here and here.

Aug 312010
 

The Associated Press is reporting that the ACLU and the Center for Constitutional Rights have filed a suit against the President and CIA Director to block targeted killings of people overseas on Constitutional grounds.  This is directed at the United States’ target killings of terrorist suspects abroad.  According to the article:

The lawsuit was filed for the father of a U.S.-born cleric believed to be hiding in Yemen. It seeks a court order saying targeting and killing U.S. citizens violates the Constitution and international law except when there’s no other way to stop an imminent threat.
The cleric is believed to have helped inspire the attempted bombing of a Detroit-bound airliner Christmas Day. He’s on the CIA’s list of targets.
The CIA says it follows American law.
The full article can be found here.  This is certainly something I will be following.
Aug 302010
 

For a few weeks I have been posting regarding the ongoing Chevron trial in Ecuador.   On August 17, I blogged about Chevron’s attempt to compel discovery regarding footage obtained in making the documentary film “Crude.”

Today Dennis L. Howell, United States Magistrate Judge in the United States District Court for the Western District of North Carolina ordered the production of documents related to the case by September 1 and to participate in a September 8 deposition.  The order stated, in part:

To the extent that the subpoena seeks materials that may arguably be subject to an attorney-client privilege, an exception to such privilege exists, “the crime-fraud exception,” where attorney-client “communications are made in furtherance of a crime, fraud, or other misconduct.” In re Sealed Case, 754 F.2d 395, 399 (D.C.Cir.1985). While respondent has argued that it would be inappropriate for this court to apply its American view of the role of an “independent court appointed expert” to that of an auxiliary court appointed in an Ecuadorian court, it is very clear from the words used by plaintiffs’ lawyer in the meeting – - some few weeks before the expert sitting in the room was in fact appointed by the court – - that Chevron did not know that the expert report was being ghostwritten by experts for the party opponent, that it would be important for no one at the meeting to tell Chevron that such had occurred, and, to the amusement of those in attendance at the meeting, Chevron would not realize what had happened to them with the independent report.  While this court is unfamiliar with the practices of the Ecuadorian judicial system, the court must believe that the concept of fraud is universal, and that what has blatantly occurred in this matter would in fact be considered fraud by any court. If such conduct does not amount to fraud in a particular country, then that country has larger problems than an oil spill.

The trial (and drama) continues…